In Re: The Matter of J.W., a Child in Need of Services (CHINS) M.W. (Mother) v. Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Aug 23 2018, 8:56 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Daniel G. Foote Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana David E. Corey Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re: The Matter of J.W., a August 23, 2018 Child in Need of Services Court of Appeals Case No. (CHINS); 18A-JC-432 M.W. (Mother), Appeal from the Marion Superior Court Appellant-Respondent, The Honorable Marilyn Moores, v. Judge The Honorable Rosanne Ang, Indiana Department of Child Magistrate Services, et al., Trial Court Cause No. 49D09-1709-JC-2969 Appellee-Petitioner.

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-JC-432 | August 23, 2018 Page 1 of 13

Statement of the Case [1] Appellant, M.W. (“Mother”) appeals the adjudication of her child, J.W.

(“J.W.”), as a Child In Need of Services (“CHINS”). Concluding that there is

sufficient evidence to support the trial court’s adjudication of J.W. as a CHINS,

we affirm the trial court’s judgment. [2] We affirm.

Issue Whether there is sufficient evidence to support the trial court’s adjudication of J.W. as a CHINS.

Facts [3] Mother and J.W.’s alleged father C.K. (“Alleged Father”)1 became involved

with the Indiana Department of Child Services (“DCS”) in September 2017

when J.W. was fifteen years old. From the time J.W. was in kindergarten until

about the age of twelve, he had lived with his maternal grandparents “almost

full time.” (Tr. 33). Mother had also lived with maternal grandparents “off and

on” when J.W. was there, but it was “more off than on.” (Tr. 33). Sometime

in 2014, when Mother obtained an apartment of her own, J.W. began living

with Mother.

1 Alleged Father is not a party to this appeal.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-432 | August 23, 2018 Page 2 of 13 [4] Around September 2017, DCS received a report that Mother had abandoned

and neglected J.W., that she was “moving around from place to place,” and

that J.W. had been living with a family friend (“Family Friend”) for “quite a

while.” (Tr. 9, 12). DCS Assessment Worker James Oliver (“Assessment

Worker Oliver”) met with J.W. on multiple occasions during his assessment but

was unable to reach Mother despite several attempts. His efforts to reach

Mother included referring the matter to a private investigator, leaving voicemail

messages and sending text messages to the telephone number Family Friend

and J.W. had for Mother, and tracking down “a couple of addresses and a

couple of phone numbers, all of [which] weren’t working.” (Tr. 11). Following

Assessment Worker Oliver’s initial assessment, DCS filed a CHINS petition

(the “Petition”) alleging that J.W. was a CHINS due to Mother’s abandonment

and neglect. J.W. also received a referral for home-based therapy. During the

pendency of the CHINS proceeding, J.W. ran away from his placement with

Family Friend, spent one evening in Emergency Shelter Care, and then spent

one week in foster care before running away again. [5] On January 9, 2018, the trial court held a fact-finding hearing on the Petition.

At the time of the hearing, J.W.’s whereabouts were still unknown. Mother

failed to appear but was represented by counsel. The trial court heard

testimony from five witnesses: (1) Assessment Worker Oliver; (2) home-based

case manager Crystal Rose (“Case Manager Rose”); (3) home-based therapist

Laura Beer (“Therapist Beer”); (4) J.W.’s maternal grandmother E.W.

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(“Maternal Grandmother”); and (5) Family Case Manager Brittany Simmons

(“Case Manager Simmons”). [6] First, Assessment Worker Oliver testified about his initial assessment and

multiple meetings with J.W., his several unsuccessful attempts to reach Mother,

J.W.’s placement with Family Friend, and DCS’s filing of the Petition. Next,

Case Manager Rose testified about her involvement as the home-based case

manager assigned to J.W.’s case. She testified that, as of the date of the

hearing, she had never met with Mother. She testified that the two had been

scheduled to meet the week before the hearing, but Mother was a “no call / no

show” and had texted two hours later that she “was sick.” (Tr. 17). Case

Manager Rose also testified that DCS had referred her to Mother “to help assist

with housing,” (Tr. 19), but that the two had not yet completed an initial

assessment. [7] Therapist Beer testified that she completed an intake with J.W. and then had

two therapeutic appointments with him in October 2017. She also testified that

during their second session, J.W. had told her that “he has a lot of mistrust

towards his mother because of the treatment he had as a child not being cared

for,” and that this mistrust “made it difficult for him to open up to others and to

trust others.” (Tr. 28). She further testified, over a hearsay objection by

Mother’s counsel, that J.W. had told her that Mother would often be locked

away in her room, leaving J.W. to fend for himself. She then opined that

Mother’s conduct had “seeded his mistrust.” (Tr. 29). Therapist Beer further

testified that she had to discharge J.W. because his foster placement was

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outside of her service area but that she recommended continued therapy for

him. [8] Maternal Grandmother testified that she had been J.W.’s primary caregiver

from the time he was in kindergarten until Mother had obtained public housing

approximately three years ago. She testified that Mother had had “problems

controlling [J.W.’s] behavior” when he had lived with Mother in public housing

and that J.W. had not been “coming home at night[.]” (Tr. 34). She also

testified that Mother “has absolutely no idea how to parent a teenager” and that

J.W. “would need help because his mother ha[d] not been there for him and

ha[d] left him and that this point he’s [a] very angry child who has little or no

respect for . . . any kind of authority.” (Tr. 34-35). She also testified that

shortly after J.W. ran away from foster care, he had appeared at her home with

all of his belongings. She testified that she had refused to let him move back in,

but she had allowed him to leave his belongings. Maternal Grandmother

further testified that she had not seen J.W. since her husband took him to

school that day. [9] Finally, Case Manager Simmons provided testimony about DCS’s involvement

in the matter since September 2017, when she was assigned the case after

Assessment Worker Oliver completed his initial assessment. Case Manager

Simmons testified that at the time she received the case, J.W. was in “kinship

care” with Family Friend. (Tr. 40). She testified that Mother’s whereabouts

were unknown at the time and that Alleged Father’s whereabouts were also

unknown. She further testified that J.W. was initially placed with Family

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Friend and then spent one night in an emergency shelter while DCS tried to

locate a foster placement for him. She testified that J.W. was subsequently

placed in foster care “for about a week” before running away and that she had

provided law enforcement a “runaway packet” with J.W.’s picture and last

known location. (Tr. 41, 49). She also testified that law enforcement had

issued a warrant for J.W.’s detention. Finally, she testified that DCS’s plan was

reunification by assisting Mother with therapy, housing, and other services to

“ultimately help her get into a better place.” (Tr. 45). [10] That day, the trial court issued its order adjudicating J.W. to be a CHINS. On

February 20, 2018, the trial court held a disposition hearing and issued another

order (the “Participation Order”) requiring Mother to: (1) undergo a parenting

assessment and to successfully complete all resulting recommendations, such as

parenting classes, home-based counseling services, or other counseling services;

(2) participate in home-based therapy to be referred by DCS and follow all

resulting recommendations; and (3) participate in family therapy with J.W. and

follow all resulting recommendations. Mother now appeals.

Decision [11] Mother argues that DCS presented insufficient evidence to support the trial

court’s determination that J.W. is a CHINS. DCS bears the burden of proving

by a preponderance of the evidence that a child is a CHINS. See IND. CODE §

31-34-12-3; In re. M.W., 869 N.E.2d 1267, 1270 (Ind. Ct. App. 2007). When

determining whether sufficient evidence exists in support of a CHINS

determination, we consider only the evidence favorable to the judgment and the Court of Appeals of Indiana | Memorandum Decision 18A-JC-432 | August 23, 2018 Page 6 of 13

reasonable inferences raised by that evidence. In re M.W., 869 N.E.2d at 1270.

This Court will not reweigh the evidence or judge witnesses’ credibility. Id.

Where a trial court enters specific findings and conclusions, we apply a two-

tiered standard of review. Bester v. Lake Cnty Office of Family & Children, 830

N.E.2d 143, 147 (Ind. 2005). First, we determine whether the evidence

supports the findings, and second, we examine whether the findings support the

judgment. Id. We will set aside the trial court’s judgment only if it is clearly

erroneous. Id. [12] In its Petition, DCS alleged that J.W. is a CHINS pursuant to INDIANA CODE §

31-34-1-1, which provides:

A child is in need of services if before the child becomes eighteen (18) years of age:

(1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

[13] Within its order adjudicating J.W. as a CHINS, the trial court issued specific

findings, including that:

10. [Mother] has not consistently cared for [J.W.] in the past. When [J.W.] did reside with [Mother], she ha[d] issues with parenting him. Additionally [Mother] would often lock herself in her room, leaving

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[J.W.] to fend for himself. [J.W.] has issues of mistrust of his mother due to this neglect.

11. [Mother] needs assistance locating appropriate housing for herself and [J.W.] as she lives with a family member in a home that does not have sufficient space for [J.W.].

12. Crystal Rose was referred to provide homebased case management services to [Mother]. Ms. Rose has been unable to meet with [Mother] to do the intake appointment in order to begin assisting [M]other with issues pertaining to housing, employment and any other identified case management need.

13. Laura Beer is a homebased therapist who was assigned to work with J.W. in October of 2017. Ms. Beer was able to meet with J.W. for an intake appointment and two subsequent therapy appointments. J.W. did not complete therapy with Ms. Beer. Ms. Beer believes that J.W. still has therapeutic needs.

14. During the pendency of this cause of action, J.W. ran away from placement with [Faimily Friend], spent one evening in Emergency Shelter Care, and only one week in foster care before running away again. The whereabouts of J.W. are currently unknown and the DCS is currently attempting to locate him.

15. . . . [Mother] has not provided [J.W.] with consistent care in the past and is not currently in a position to provide for his basic needs. Additionally, [Mother’s] history of parental deficiencies has created mistrust on the part of [J.W.], which is best addressed prior to him returning to her care. [Alleged Father] is incarcerated and unable to care for [J.W.] at this time.

16. . . . [J.W.] is in need of stability while [Mother] works toward obtaining a stable home that is appropriate for the family and demonstrates that she is able to provide consistent, appropriate care. [J.W.] and [Mother] are in need of family therapy to address the issues which have been created by [Mother’s] past parenting o[r] lack thereof.

(App. Vol. 2 at 104-05). [14] On appeal, Mother does not challenge any of the above specific findings, and

therefore those findings stand as correct. McMaster v. McMaster, 681 N.E.2d

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744, 747 (Ind. Ct. App. 1997) (explaining that unchallenged trial court findings

are accepted as true). Rather, Mother challenges only whether the trial court’s

findings are sufficient to support two of its judgments: (1) that J.W.’s physical

or mental condition was seriously impaired or endangered as a result of

Mother’s neglect, refusal, or inability to supply food, clothing, shelter, medical

care, education or supervision; and (2) that J.W. needed care or services he was

not receiving and which were unlikely to be provided absent the court’s

coercive intervention. She further contends that because J.W.’s location is

unknown, the trial court’s orders are “largely moot,” and she suggests that the

CHINS matter should be dismissed “at least until such time as [J.W.] is

located.” (Mother’s Br. 23, 25). We disagree. [15] Mother first challenges whether the trial court’s findings support a conclusion

that J.W.’s physical or mental condition was seriously impaired or endangered

as a result of Mother’s neglect, refusal, or inability to supply food, clothing,

shelter, medical care, education or supervision. In her brief, she admits that

“there is no question that J.W. may be ‘seriously endangered’ after having run

away” but argues that J.W.’s status was not due to any “act or omission on the

part of Mother alleged in the Petition.” (Mother’s Br. 23). Mother apparently

misapprehends the unchallenged findings, which include specific findings

bearing on both the abandonment and neglect allegations in the Petition and

the trial court’s conclusion that J.W.’s physical or mental condition was

seriously impaired or endangered. Specifically, the trial court found that

Mother had not provided consistent care, housing, or supervision for J.W. in

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the past, that she was not presently able to provide those basic needs, and that

her history of parental deficiencies had caused emotional harm to J.W. such

that his mistrust of her needed to be addressed prior to reunification. 2 These

unchallenged findings support the trial court’s conclusion that J.W.’s physical

or mental condition was seriously impaired or endangered because Mother had

neglected, refused, or was unable to provide shelter and supervision to J.W.

Accordingly, we find no error. [16] Next, Mother challenges whether the evidence supports the conclusion that

J.W. needed care, treatment, or rehabilitation he was not receiving and would

be unlikely to receive absent the court’s intervention. In doing so, Mother

makes the same arguments addressed above, which fail for the same reason:

the unchallenged findings support the trial court’s conclusion that J.W. was not

receiving care, supervision, or shelter from Mother. Regarding the need for the

court’s coercive intervention, a trial court necessarily considers a parent’s “past,

present, and future ability to provide sufficient care” during a CHINS

2 Although Mother does not challenge any of the court’s specific findings, in her brief Mother argues, without elaboration or citation, that “no qualification or foundation was made to establish that [J.W.’s statements to Therapist Beer] were admissible under any applicable hearsay exception” and that “it was error for the juvenile court to admit the statements attributed to J.W. by Ms. Beer.” (Mother’s Br. 23). We find this argument neither cogent nor developed, and therefore Mother has waived it. Wallace v. State, 79 N.E.3d 992, 1000 (Ind. Ct. App. 2017); see also Ind. Appellate Rule 46(A)(8)(a) (requiring that each contention be supported by cogent reasoning and supporting citations to legal authority). Waiver notwithstanding, Mother is incorrect in her assertion that no foundation was laid for admitting the hearsay exception. DCS laid a foundation for admitting the evidence pursuant to Indiana Evidence Rule 803(4), a statement made for medical diagnosis or treatment. Specifically, DCS provided evidence that Therapist Beer had explained “the therapy process and what therapy would be used for” (Tr. 25) and that J.W. was of an age that he could understand that the information he told her would be used in a therapeutic capacity. Accordingly, we find no error.

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adjudication. Matter of J.L.V. Jr., 667 N.E.2d 186, 190-191 (Ind. Ct. App.

1996); see also In re D.J. v. Indiana Dep’t of Child Services, 68 N.E.3d 574 (Ind.

2017) (“When determining CHINS status under Section 31-34-1-1, particularly

the ‘coercive intervention’ element, courts should consider the family’s

condition not just when the case was filed, but also when it is heard.”). Here,

the trial court’s specific findings demonstrate Mother’s long history of parental

deficiencies, her present inability to provide for J.W.’s basic needs, and her

failure to engage in any services offered to her by DCS that would allow the

trial court to predict she would cooperate with DCS without the court’s

intervention. Cf. id. at 581 (explaining that parents did not need coercive

intervention by the time of the fact-finding hearing because they “had

completed the parenting curriculum . . . were very open and willing, had

engaged in services, and were serious about doing what the court . . . asked

them to do.”) (internal quotation marks omitted). Therefore, the trial court’s

conclusion is not clearly erroneous. [17] Finally, Mother argues for the first time in her reply brief that the trial court’s

CHINS adjudication should have been pursuant to INDIANA CODE § 31-34-1-8,

rather than § 31-34-1-1, because J.W. was a “missing child” as contemplated by

that provision. We find that argument waived. See Monroe Guar. Ins. Co. v.

Magwersk Corp., 829 N.E.2d 968 (Ind. 2005) (“The law is well settled that

grounds for error may only be framed in an appellant’s initial brief and if

addressed for the first time in the reply brief, they are waived.”); see also Ind.

Appellate Rule 46(C) (“No new issues shall be raised in the reply brief.”).

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Waiver notwithstanding, her argument still fails because the sections of

INDIANA CODE § 31-34-1-1, et seq., are not mutually exclusive; no language in

the statute precludes a missing child from being adjudicated a CHINS under §

31-34-1-1, and Mother has cited to no authority indicating otherwise. In fact, as

the trial court noted, J.W.’s running away only “reinforces that this young man

is in need of assistance.” (App. Vol. 2 at 105). [18] To the extent that Mother argues that “this CHINS matter should be dismissed,

with or without prejudice,” as “neither [she] nor [DCS] can comply with the

CHINS adjudication . . . because J.W. is unavailable to receive [services],” we

likewise find that argument unavailing. (Mother’s Br. 21, 25). Mother

apparently misapprehends her obligations under the Participation Order. The

Participation Order requires Mother to engage in home-based therapy,

complete a parenting assessment, and participate in family therapy with J.W.

“when appropriate,” and the trial court expressly acknowledged that family

therapy can only begin once J.W. has been located. (See App. Vol. 2 at 105

(“While DCS is unable to provide the needed services until [J.W.] is located,

the Court is unwilling to find that [J.W.] is not in need of services based on this

fact alone.”)). J.W.’s absence does not preclude Mother from following the

trial court’s orders to engage in home-based therapy, complete the parenting

assessment, and otherwise ready herself for J.W.’s return, at which time family

therapy can begin. Certainly, if Mother’s goal is to reunify with J.W. as soon as

possible, she should not delay participating in services until after J.W. is

located.

Court of Appeals of Indiana | Memorandum Decision 18A-JC-432 | August 23, 2018 Page 12 of 13 [19] We reverse a trial court’s CHINS adjudication only when clearly erroneous, i.e.,

“that which leaves us with a definite and firm conviction that a mistake has

been made.” Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235

(Ind. 1992). We find no such error here and therefore affirm the trial court. [20] Affirmed.

Najam, J., and Crone, J., concur.

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